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United States v. Berckmann

United States District Court, D. Hawaii

November 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MATTHEW BERCKMANN, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL

          Susan Oki Mollway United States District Judge.

         I. INTRODUCTION.

         Before this court is Defendant Matthew Berckmann's Second Amended Motion For New Trial (“Amended Motion”). See ECF No. 206. Following a jury trial, Berckmann was convicted of two counts of having intentionally assaulted his wife, Jessie Fenton. Berckmann now argues that his trial attorneys provided ineffective assistance by failing to call Fenton as a witness, that a juror engaged in misconduct by failing to disclose having provided counseling on domestic violence issues, and that the court erred at trial in admitting evidence under Federal Rule of Evidence 404(b). None of the grounds warrants a new trial, and the court denies Berckmann's motion.

         II. BACKGROUND.

         On October 18, 2017, Berckmann was arrested in Haleakala National Park, following an altercation with Fenton in one of the park's campgrounds. On December 14, 2017, Berckmann was charged with “intentionally assaulting Jessie Fenton with a dangerous weapon, namely a knife, with intent to do bodily harm to Jessie Fenton, ” in violation of 18 U.S.C. § 113(a)(3) (“Count 1”); and with “intentionally assaulting Jessie Fenton, his spouse, by strangling her, or attempting to do so, ” in violation of 18 U.S.C. § 113(a)(8) (“Count 2”). ECF No. 4.

         On April 18, 2018, a jury found Berckmann guilty of both counts. See ECF No. 146. Berckmann's trial attorneys then moved to withdraw because Berckmann had indicated that he planned to raise ineffective assistance of counsel arguments. See ECF No. 151, PageID #s 1380-81. The court granted the trial attorneys' motion to withdraw, and new counsel was appointed for Berckmann on May 18, 2018. See ECF No. 155, PageID #s 1387-88.

         In an unsworn statement filed on May 21, 2018, Fenton says that she “was not pushed to the ground, strangeled [sic], threatened with a knife, or harmed in anyway [sic] by my husband Matthew Berckmann.” ECF No. 156, PageID # 1389. The statement further asserts that she was willing and able to testify at Berckmann's trial, that there was false evidence presented at trial, that there was exculpatory evidence not presented at trial, and that the trial attorneys were ineffective. See id.

         On May 22, 2018, Berckmann's new counsel filed a Motion For New Trial (“Original Motion”), which argued that trial counsel had been ineffective by failing to call Fenton as a witness at trial. See ECF No. 158, PageID #s 1398-99. On July 18, 2018, Berckmann filed a reply to the Original Motion that raised new arguments, including that a juror may have engaged in misconduct. See ECF No. 188, PageID #s 2588-89.

         The court held a hearing on the motion on August 6, 2018, at which Berckmann added the argument that the court had improperly admitted Rule 404(b) evidence. The hearing was continued after Berckmann indicated that he wanted to call Fenton as a witness, but could not locate her. See ECF No. 197. The court later granted Berckmann leave to amend his motion so that the arguments about the juror and the Rule 404(b) evidence could be properly briefed, and on August 14, 2018, he filed the present Amended Motion. See ECF Nos. 200, 206.

         At a continued hearing on September 10, 2018, this court heard testimony by Sharron Rancourt, one of Berckmann's trial attorneys. See ECF No. 215. Fenton was in the courthouse, and at times Berckmann seemed to want to call her to testify, but Berckmann ultimately opted not to call Fenton as a witness. The court later allowed optional briefing on the Rule 404(b) issue, and the parties filed supplemental briefs on that issue on October 9, 2018. ECF Nos. 217, 218, 219.

         III. STANDARD UNDER RULE 33.

         Rule 33(a) of the Federal Rules of Criminal Procedure provides: “Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.” The burden of establishing that a new trial is warranted rests with the moving party. See United States v. Endicott, 869 F.2d 452, 454 (9th Cir. 1989). A motion for new trial “is directed to the discretion of the judge” and should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (citation omitted); accord United States v. Mack, 362 F.3d 597, 600 (9th Cir. 2004) (reviewing the denial of a motion for new trial under Rule 33(a) under an abuse of discretion standard). A district court's power to grant a motion for new trial is much broader than its power to grant a motion for judgment of acquittal, United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992); a new trial may be granted when the “interest of justice so requires.” Fed. R. Crim. P. 33(a).

         Rule 33(b) provides time limits for filing a motion for new trial:

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

         The court may consider an untimely motion for new trial if “the failure to file it on time was the result of excusable neglect.” Fed. R. Crim. P. 33 Advisory Committee Notes on 2005 Amendments; Fed. R. Crim. P. 45(b)(1)(B); see also Eberhart v. United States, 546 U.S. 12, 19 (2005) (holding that the time limits in Rule 33 are not jurisdictional).

         IV. ANALYSIS.

         Berckmann is seeking a new trial based on three grounds: (1) ineffective assistance of counsel, (2) juror misconduct, and (3) improper admission of Rule 404(b) evidence at trial. See ECF No. 206-1, PageID #s 2724-39. His motion for a new trial is denied.

         A. Berckmann's Ineffective Assistance of Counsel Argument Fails.

         1. This Court Finds Excusable Neglect in the Failure to Raise the Ineffective Assistance of Argument Earlier.

         As noted earlier in this order, a motion for new trial based on any ground other than newly discovered evidence must be filed within 14 days of a verdict, absent excusable neglect. See Fed. R. Crim. P. 33(b); Fed. R. Crim. P. 45(b)(1)(B); Fed. R. Crim. P. 33 Advisory Committee Notes on 2005 Amendments. Berckmann's verdict was returned on April 18, 2018, and his Original Motion, which raised the ineffective assistance of counsel argument, was not filed until May 22, 2018. See ECF Nos. 146, 158. Ineffective assistance of counsel is not considered “newly discovered evidence.” See United States v. Allen, 153 F.3d 1037, 1045 (9th Cir. 1998) (“We have rejected the use of a Rule 33 motion for new trial based on ‘newly discovered evidence' involving the ineffective assistance of counsel.” (quoting United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997))). Thus, the argument that his trial attorneys were ineffective in failing to call Fenton as a witness is untimely raised unless this court finds excusable neglect.

         In determining whether there was excusable neglect, this court considers the following factors: “(1) the danger of prejudice to the other party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party's conduct was in good faith.” Pincay v. Andrews, 389 F.3d 853, ...


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